Formal requests may be seen as grievance notes

Employers should treat any staff requests for flexible working as potential grievance letters that may trigger employment tribunal claims, lawyers have warned.

A recent series of tribunal rulings has established that employees do not have to explicitly notify their manager of a grievance before taking them to court. This runs contrary to disciplinary procedure guidelines from the government, which had indicated that a formal grievance letter was needed before proceeding.

Law firm Trowers & Hamlin said that employers should now look at most formal staff requests as potentially triggering the claims procedures. Failure to do so could lead to a compensation award being increased by 50% in a successful tribunal claim, it said.

Richie Alder, partner at Trowers & Hamlin, said: “Employees can only pursue claims if they have raised grievances in writing first, so if the definition of what constitutes a formal grievance letter is relaxed, the potential for claims is increased.

“Employers must know what now constitutes a grievance so they know when to initiate the correct grievance procedure. Employers are now at greater risk of being penalised for not instigating the grievance procedure when they should.”

Plausibly, any written request for something that employers have a legal obligation to consider, but which they have previously rejected, now constitutes a grievance, Alder said.

Trowers advises that if an employee raises a matter in writing, the employer should clarify whether it is a grievance or not before beginning the statutory grievance procedure.

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